The UK Supreme Court has it changed things? A US perspective

The UK’s constitution has always been somewhat of an anomaly to the United States. We have no written constitution, and the legislature, executive and judiciary have historically been very interlinked: the checks and balances on the power of the political elite that exist in the US are not present (at least not to the same extent) in the UK.

The Constitutional Reform Act 2005 has gone some way towards addressing the overlap of powers by creating the UK Supreme Court, which sits separately from the other branches of the state. Notwithstanding this, a lot of people within the UK seem to be of the opinion that in reality, the UK Supreme Court will just continue doing what the House of Lords did for centuries before it.

However, some commentators in the United States are hailing this as a bigger change. Nicholas Stephanopoulos recently discussed the change that the Supreme Court will make to the British constitution in The National Law Journal. He talks of the UK Supreme Court now “being immune from parliamentary pressures” and being “ensconced in the striking Middlesex Guildhall rather than a cramped Westminster corner“, and suggests that the British judiciary may now be emboldened by its independence and high profile.

In a recent interview in The Metropolitan Corporate Counsel, Isaac Lidsky (an American Associate in the London office of Akin Gump Strauss Hauer & Feld LLP who has previously worked as a clerk in the US Supreme Court) commented that the change in the UK court system is “far from trivial“, and that his “colleagues in the States, co-clerks and Justices of [the US] Supreme Court tend to think the shift from the Law Lords to the new Supreme Court is much more significant than people [in the UK] do“.

One of the important changes from his point of view is that the Justices have moved in the direction of acting as a unit, rather than as individual judges. For example, he notes that the judgments handed down by the Supreme Court last term were ‘judgments of the court’ which he calls “an important and significant change” and “progress“.

Stephanopoulos also suggested that the UK Supreme Court may lead the way for America in some respects. For example, Judicial ideology is a hot topic in the States with conservatives arguing that liberal judges impose their own values on society and disregard the law. Stephanopoulos comments that “if British justices now become more assertive, after centuries of relative tameness, this will show that courts’ dynamism comes from their independence – not their liberalism“.

A further example used by Stephanopoulos is the filming and broadcasting of proceedings within the UK Supreme Court. This is seen as a somewhat radical move by the US. Justice David Souter once said that filming UK court proceedings would only come “over his dead body“, but Stephanopoulos acknowledges that if filming in the UK Supreme Court leads to an increase in judicial transparency, then the US may have to revisit its no cameras rule.

Jamie Maples, an American Associate in the London office of Weil, Gotshal and Manges has also recently been interviewed in The Metropolitan Corporate Counsel about the UK Supreme Court. Maples suggests that it is expected (and hoped) that, initially at least, the formation of the UK Supreme Court will have little material effect on “the substance and style of law in the United Kingdom“. However, he goes on to note that the new system for the appointment of justices avoids political involvement and increases transparency. He also says that it is hoped that by creating the UK Supreme Court ” the judiciary as a whole has been put on a better footing to deal with issues…without the fear of political involvement“.

These reflections on our new Supreme Court are interesting. Many people in the UK have not seen the birth of the UK Supreme Court as a significant constitutional change: the attitudes of most seem to be that it is just the same people with the same power in a new (and very expensive) building. While the change may not quite qualify as “radical”, the US is certainly watching closely to see what difference, if any, our new court system will really make.